"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“It’s chaos on top of disaster. By the end of next week, Trump will have added at least 100,000 cases to the already existing backlog of 800,000 + cases, plus another 300,000 that former A.G. Sessions diabolically and unnecessarily promised to artificially force back into the system. That’s 4-5 years of work for the Courts even with no new filings! People with good cases are denied justice while others postpone their day of reckoning indefinitely.
Many of these cases will never be decided unless Congress reforms this broken system by removing political control from the DOJ. I call this “Aimless Docket Reshuffling” (“ADR”) — cases being moved around by incompetent politicos at the DOJ without ever being completed. And under Sessions, the DOJ excelled at ADR, unnecessarily and artificially “jacking” the backlog by an incredible 50%+ in less than two years of politically biased and incompetent maladministration of the system. And, that’s even with more judges on the bench! Trump and his cronies have effectively destroyed one of America’s largest and most important court systems.
It must be reformed into a court independent of Executive overreach and incompetence. A new court must be established run by apolitical expert judges with the assistance of professional court administrators accountable to those judges, not Administration politicos. It’s not rocket science, just common sense, fundamental fairness, and above all, Constitutional Due Process.”
WaPo: In addition to its immigration provisions, the package — which McConnell could move to advance as early as Tuesday, although a Thursday vote appears more likely — would reopen all parts of the government that are closed. It also would provide emergency funding for U.S. areas hit by hurricanes, floods and other natural disasters.
TRAC: Since the beginning of the federal government shutdown, most Immigration Court hearings have been cancelled. As of January 11, the estimated number of cancellations reached 42,726. Each week the shutdown continues, cancelled hearings will likely grow by another 20,000. As many as 100,000 individuals awaiting their day in court may be impacted if the shutdown continues through the end of January. See also: These states’ immigration courts are most impacted by the government shutdown.
USAToday: Of the 60,000 employees at Customs and Border Patrol, nine of 10 must report to work, checking passports and manning pieces of the border wall that have already been built. But they’re not being paid.
Vox: Refugee admissions have plummeted, while rejections of asylum applications have increased. Arrests of immigrants without criminal records have returned to the levels of the first term of the Obama administration, while Trump works to make hundreds of thousands more immigrants vulnerable to deportation, by stripping them of protections under the Deferred Action for Childhood Arrivals program or Temporary Protected Status. And the travel ban quietly churns on.
CMS: The US undocumented population from Mexico fell by almost 400,000 in 2017. In 2017, for the first time, the population from Mexico constituted less than one half of the total undocumented population.
WaPo: Speaking Sunday on CBS’s “Face the Nation,” the vice president quoted from King’s “I Have a Dream” speech as he defended Trump’s latest pitch to secure funding for a barrier along the United States’ southern border.
WaPo: Richard Kessler, an immigration lawyer in Grand Rapids, Mich., said he was surprised when a woman he had worked with called to tell him that her son, a 27-year-old Marine veteran with mental-health issues, was being held in an immigration facility, apparently awaiting a possible deportation.
CNN: With Sen. Kirsten Gillibrand entering the 2020 presidential race on Tuesday, her dramatic shift on the issue of immigration over the past decade will likely be one of the central questions about her candidacy as she seeks to take on President Donald Trump.
DailyNews: In what could be its biggest campaign, the New York Immigration Coalition, the state’s largest immigration advocacy group, plans to spend at least $1 million on TV, radio and targeted social and digital media ads as well as billboards.
CBS: When U.S. consumers are calling about a hotel reservation or an airline flight, there’s a good chance a deportee in El Salvador is on the other end of the line.
NBC: Trump administration officials weighed speeding up the deportation of migrant children by denying them their legal right to asylum hearings after separating them from their parents, according to comments on a late 2017 draft of what became the administration’s family separation policy obtained by NBC News. The draft also shows officials wanted to specifically target parents in migrant families for increased prosecutions, contradicting the administration’s previous statements.
WaPo: The report issued by the inspector general for the Department of Health and Human Services says no one systematically kept count of separated children until a lawsuit last spring triggered by the Trump administration’s “zero tolerance” policy, under which the government tried to criminally prosecute all parents who crossed the border illegally, taking their children from them in the process. See also As One ‘Tent City’ for Immigrant Children Closes in Texas, Another Opens in Florida.
Al Jazeera: Last year, around 2,297 migrants died or went missing in the Mediterranean while 116,959 people reached Europe by sea. According to the IOM, sea arrivals to Europe in the first 16 days of 2019 totalled 4,216, compared with 2,365 in the same period of 2018.
NPR: U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count “without curing the legal defects” the judge identified in his 277-page opinion released on Tuesday.
USCIS: Generally, conditional permanent residents who file a Form I-751 must appear for an interview. However, USCIS officers may consider waiving an interview.
EOIR released guidance on Grace v. Whitaker, stating that for all credible fear review hearings conducted on or after 12/19/18, IJs may not rely on several aspects of Matter of A-B- as a basis for affirming a negative credible fear determination. Guidance obtained from CGRS and ACLU.
USCIS issued policy guidance in the USCIS Policy Manual to address the policies and procedures related to secure documents, including how USCIS delivers and tracks these documents and how requestors should request a replacement or reissuance. Comments are due by 1/30/19. Policy is effective 1/16/19.
CBP Liaison Minutes: If a permanent resident, who has a pending application for naturalization in which a Notice of Intent to Deny was issued challenging whether the individual had been eligible for adjustment of status at the time that application was filed, travels abroad and presents his green card upon his return, will he be admitted as a permanent resident? Are such cases flagged in some way? If there has only been a NOID and no action has been taken on the N-400, the individual will be admitted as an LPR. If the N-400 was denied and the individual was issued an NTA under Section 237 (but has not been served), CBP will re-issue the NTA under Section 212. If an NTA was issued and served under Section 237, the individual will be admitted as an LPR in proceedings.
2019 National Day of Action: On Thursday, April 11, 2019, AILA members and their clients are invited to meet with their legislators on Capitol Hill to discuss immigration policy changes and the impact it has on their state and district.
Upwardly Global’s mission is to eliminate employment barriers for skilled immigrants and refugees, and integrate this population into the professional U.S. workforce.
Trump offers to limit his border wall to strategic locations
BY NOLAN RAPPAPORT, OPINION CONTRIBUTOR — 01/20/19 07:00 AM EST 945
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
House Speaker Nancy Pelosi (D-Calif.) should give serious consideration to the settlement proposal that President Donald Trump made in his televised address from the White House.
Her objection all along has been to building a wall across the entire length of the Mexican border, and Trump no longer intends to erect “a concrete structure from sea to sea.”
He has acknowledged that much of the border is already protected by natural barriers, such as mountains and water. He wants the $5.7 billion he has requested for a strategic deployment of steel barriers at high priority locations.
The border already has many miles of barriers, including 115 miles that are being built or are under contract. He just plans to add another 230 miles this year at locations where they are most urgently needed.
These barriers would not make illegal crossings impossible, but they would make illegal crossings more difficult and make it easier for the Border Patrol to apprehend crossers.
His request includes $800 million for humanitarian assistance; $805 million for drug detection technology; 2,750 more border agents and law enforcement officers; and 75 more immigration judges.
In what he describes as an effort to build trust and goodwill, the legislation he is offering to implement his proposal also would extend the status of 700,000 DACA participants for three years.
This is just a temporary measure, but the outcome of the litigation over the DACA program is uncertain, and the participants will be extremely vulnerable if the program is terminated. DACA participation is sufficient in itself to establish deportability, and they can’t apply for asylum. There is a one-year time limit on filing asylum applications and they all have been here for more than a year.
The legislation also would extend the status of 300,000 current Temporary Protected Status recipients for three years.
Senate Majority Leader Mitch McConnell (R-Ky.) has promised Trump that his bill will be brought to the floor of the Senate this week.
Trump also mentions the immigration court backlog crisis in his address. He says that it is not possible to provide an asylum hearing for every illegal crosser who sets one foot on American soil.
The asylum provisions state that aliens who are physically present in the United States may apply for asylum irrespective of their immigration status, unless one of the stated exceptions applies.
In my opinion, the sheer number of illegal crossers is the real border crisis. It has overwhelmed our immigration courts, making it virtually impossible to enforce immigration laws..
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Read Nolan’s complete article over on TheHill at the link.
At the time Nolan released this, he didn’t have the complete Trump proposal. I initially thought like Nolan that there might be the seeds for agreement in there.
But, Trump misrepresented what he was offering. In reality, it was yet another bogus 1000 page anti-asylum travesty drafted by White Nationalist in Residence Stephen Miller. Clearly intended to be a non-starter. Actually, it’s much like the dishonest tactics Trump used during the “Dreamer Debacle” that he engineered for no particular reason I can think of. And, that was when the GOP actually was in control.
Also, Nolan didn’t have the benefit of the Supreme Court action leaving DACA in effect for the indefinite future.
I’ve posted lots recently on what real border security and humanitarian assistance might look like. And, the Dems appear to be at work on something along those lines; a robust $5.7 billion but more constructive border security package that provides more resources for the Asylum Office, EOIR, technology, and inspections, but doesn’t undermine fundamental asylum law, negate Wilberforce protections for unaccompanied minors, or trash our international protection obligations.
Ultimately, once the Government reopens, that approach, plus permanent status for the Dreamers, with some wall or other physical barriers for Trump still seems to be the most likely way of ”getting to yes.” Then again, there might be no way of getting to yes with Trump.
Court Backlog May Prove Bigger Barrier for Migrants Than Any Wall
Every day, dozens of migrants arrive at the southern border hoping to seek asylum and stay in the United States. President Trump champions a wall as the one thing that could keep them from starting a life in the country. Right now, the big hurdle for many migrants comes not at the border but on the other side.
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I highly recommend the complete article, with some spectacular graphics, at the link.
The article says the Immigration Courts are “in crisis.” I say they are “in shambles!”
While this disaster has been unfolding since 2000, there is no doubt that the Trump Kakistocracy, featuring totally unqualified, biased, and managerially incompetent White Nationalist Attorney General Jeff “Gonzo Apocalypto” Sessions bears the major responsibility for this mockery of justice and trashing of Constitutional norms. A 50% increase in backlog created by “malicious incompetence” is beyond outrageous and a shocking example of fraud, waste, and abuse by a cabinet officer with no accountability from a GOP Congress that has long abandoned its responsibility to govern in the public interest.
Not only do the self-generated backlog and Sessions’s distortions of law form a barrier for migrants, but also a barrier to legitimate immigration enforcement, another casualty of the Trump Kakistocracy. Under Trump, DHS has become so arbitrary, capricious, and unprofessional that its “Gonzo” policies have actually spawned an “Abolish ICE” movement as well as made DHS an anathema to serious law enforcement efforts of all types across the country.
WASHINGTON — The Trump administration plans to begin turning asylum-seekers back across the southern border on Friday to wait in Mexico under a new policy designed to crack down on immigration by Central American families, according to three Department of Homeland Security officials familiar with the matter.
Customs and Border Protection officers will begin returning asylum-seekers trying to enter at the San Ysidro port of entry in California from Tijuana, Mexico, where thousands of migrants from Honduras, Guatemala and El Salvador are already waiting in poor conditions.
The Trump administration has blamed that court decision, known as the Flores settlement, for being a magnet that is driving record numbers of immigrant families to apply for asylum at the southern border. Last summer under the “zero tolerance” policy, DHS separated asylum-seeking parents from their children at the border, sparking international outcry.
Overall numbers of undocumented immigrants apprehended or stopped from legally entering the United States are lower than the historic highs reached in the early 2000s.
Children who travel without a guardian, immigrants who appear ill as well as other “vulnerable populations” will be exempt from the policy and allowed to wait in the U.S. for an immigration hearing.
Immigrant and civil rights organizations have threatened to sue the Trump administration over the policy, known as Migration Protection Policy, which Homeland Security Secretary Kirstjen Nielsen announced was coming in her congressional testimony in December.
The policy is a unilateral move by the U.S. and not part of an agreement with Mexico, two officials said, though Mexico has agreed to care for immigrants who are waiting to apply. The Lopez Obrador administration in Mexico has been vocal about its opposition to the policy in the past.
Beginning Friday, the asylum-seekers who come to the San Ysidro port of entry will be sent back to Tijuana with a notice to appear in court in San Diego. On their court dates, U.S. Immigration and Customs Enforcement will provide transportation from the port of entry to immigration court. Asylum-seekers will also be given a 24-hour hotline to call for the status of their asylum cases.
SHUTDOWN HAS FURLOUGHED IMMIGRATION COURT JUDGES
Due to a backlog in U.S. immigration courts of more than 800,000 cases, asylum-seekers currently have to wait months or even years to see a judge. DHS has asked the Justice Department to expedite the cases of immigrants waiting in Mexico, and two officials said they expect the asylum-seekers affected by the new policy to wait no more than a year.
The partial government shutdown over President Donald Trump’s plan for a border wall has furloughed immigration judges, however, so the backlog of cases is expected to rise.I
Conditions for Central Americans waiting in Tijuana are already poor. CBP officers on the U.S. side are practicing “metering” where they let in somewhere from 40 to 100 immigrants per day. Shelters for families and children in Tijuana are overcrowded and many are struggling to meet migrants’ basic needs.
They also face backlash from Tijuana residents who do not want their city overrun with Central Americans. Two boys were lured out of a camp and murdered late last year.
Human rights organizations have warned that turning back the small number of immigrants who are allowed to cross into the U.S. to claim asylum will only worsen the problem and force asylum-seekers to either wait in poor conditions or resort to dangerous routes to cross illegally.
Two children died in the custody of U.S. Border Protection in December after traveling with their parents through rough terrain in remote areas.
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With the Trump Administration, what they say is seldom what you get. Remember sycophant and “frequent liar” Nielsen falsely claiming that there was “no family separation policy.”
So, I would be surprised if officials on either side of the border actually are prepared to carry this out without major problems. Indeed, almost every major restrictionist immigration initiative announced by the Trump Administration has proved to be 1) wholly illegal; 2) partially illegal; and/or 3) incompetently administered, as well as dumb and in many cases intentionally cruel. An Administration of Clowns doesn’t turn into a troupe of trapeze artists overnight. The question really isn’t whether DHS will screw this up, but rather how.
First, it’s not clear what provisions have been made for attorney access. And, of course processing all cases at a few ports of entry, rather than distributing them across the U.S., could limit the pool of available, mostly pro bono, attorneys.
On the flip side, concentrating cases at a limited number of ports of entry might make it more possible for NGOs and pro bono organizations to concentrate resources and create representation programs. Still, a real asylum project carried out by a Government legitimately interested in complying with the law and Due Process would not be implemented without working with pro bono groups in advance to set up a representation and access system. Clearly, the failure to do that shows bad faith on the part of the Administration. Because individuals are entitled to representation (but not appointed counsel) in removal proceedings that, in and of itself, ought to be a reason for enjoining the program on statutory and Due Process grounds until there is a realistic plan for giving reasonable access to counsel.
The second thing that jumps out at me as unlikely is the promise that ICE will “taxi” individuals from the border to their hearings and back. One might wonder why a supposed law enforcement agency is operating a “taxi service.” Beyond that, my experience on the detained docket in Immigration Court was that ICE sometimes struggled to get detainees to court on time when they were residing in the same facility as the courtroom. It seems unlikely that ICE will be able to produce individuals from the Mexican border in a timely manner for their court hearings. And remember folks, these are the clowns who don’t even know how many children they have in their custody and where they all are!
Third, if these cases are “prioritized” by the toadies at EOIR, at the demand of DHS, it will lead to yet another round of “Aimless Docket Reshuffling” and arbitrary delays in the captive and already failed Immigration Court System which the Trump Administration essentially has destroyed and ground into the dirt.
Fourth, since the Administration has already had detainees die in the U.S., and has also allowed individuals to die in Mexico while awaiting intentionally delayed interviews, I hope that advocacy groups are preparing civil suits to hold Nielsen and other officials personally liable for very predictable unconstitutional harm inflicted on individual asylum applicants.
A major recurring problem with running a White Nationalist regime is that policy is built upon false narratives, outright lies, and racist-inspired myths. So instead of working with folks with real expertise to solve problems, they waste our taxpayer money on endless gimmicks and illegal schemes. All are “built to fail” and many are proven failures. But, that’s what a Kakistocracy does.
At some point, Nielsen’s disgraceful record of dishonesty, sycophancy, and incompetence is likely to come back to haunt her. She truly is a “Child of the Kakistocracy.”
The result: Morale is at a “historic low,” said Ashley Tabaddor, the president of the National Association of Immigration Judges and a Los Angeles-based immigration herself, in an interview with CBS News.
The immigration court docket is split into two categories: Hearings for immigrants who have been detained represent about 5 to 10 percent of the docket. These cases have been uninterrupted during the shutdown and have been overseen by approximately 100 judges who aren’t getting paid.
But the vast majority of the immigration court docket is made up of immigrants who have been released but being monitored, or “non-detained” cases. Those cases case been postponed during the showdown. Judges who oversee these cases are completely barred from working, even on their own time to get ahead on administrative issues.
“I’ve been using the words ‘unprecedented’ and ‘surreal,’ and yet it keeps becoming more unprecedented and more surreal,” said Tabaddor. “It’s so unfortunate that we’ve reached this level of dysfunction.”
Adding to the low morale is a the massive backlog of cases, which has risen by nearly 50 percent since President Trump took office. As of November 30 the backlog stood at just over 800,000 cases, but if the shutdown continues through February it could break one million.
Worse still for the judges is a new quota system announced in October by the Department of Justice. It said that all judges would be required to complete 700 immigration cases in the following year; if they fall behind, their job security could be on the line.
“It’s so disconnected from reality,” said Tabaddor. “Those cases just can’t be completed in the timeframe that the administration is demanding. Frankly, it’s laughable.”
Given that many judges haven’t been able to work for more than a month, will the quota be waived? DOJ hasn’t given any guidance, said Tabaddor.
“It’s not like if you miss a day of work, they work just goes away,” Tabaddor said. “Everyone knows that they minute the shutdown is over, what awaits them is 10 times worse than what they left behind.”
“Judges jobs are on the line if they don’t meet these arbitrary number,” Tabaddor said. “People are very concerned.”
A call and email to the Department of Justice were not returned, but the agency’s website said that press inquiries may not be returned because of the government shutdown.
Currently, most non-detained judges have four to five thousand hearings scheduled through 2021 and in some cases 2022, Tabaddor said, noting that “every single day on their calendar is booked.” Immigrants who had hearings originally scheduled during the shutdown will most likely be forced to wait years before they’re able to get in front of a judge.
Forcing judges to rush through their quotas could have a devastating impact on immigration hearings, said Kate Voigt, the associate director of government relations at the American Immigration Lawyers Association. When forced to choose between their own job security and a through understanding of an individual’s case, many judges have gone with the former, pushing through cases without giving immigrants their due process, Voigt said.
The Department of Justice has “increased pressures on judges to churn out cases at lightning speeds, at the expense of due process and case-by-case determinations,” Voigt said in an email to CBS News.
In Charlotte, North Carolina some judges have refused to hear testimony from female asylum seekers from Central America, citing an now-overturned policy statement from former Attorney General Jeff Sessions that removed domestic and gang violence from admissible asylum criteria, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina, in an interview with CBS News. In one asylum hearing McKinney had last year prior to the government shutdown, Judge Barry Pettino refused to let his client testify, instead denying her asylum case outright because it dealt with gender-based violence, according to McKinney.
“My client didn’t think she was going to win her case, but she certainly didn’t think we were going to be in and out in 45 minutes,” McKinney said. “If the asylum seeker never gets to take the stand under oath, never gets to tell their story, that’s a fundamental due process problem right there.”
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In the words of the distinguished Judge Tabaddor, “surreal!” Why is it “OK” to have a court operating in the “Twilight Zone” making life or death decisions? How would you like YOUR life or YOUR loved one’s life to be determined by this dysfunctional mess?
Simply shameful! Also completely unnecessary. Trump and the DOJ are totally unqualified to run any court, let alone one with life or death authority. Congress is paralyzed. If the Article IIIs don’t step in, take this over, and require the restoration of at least rudimentary Due Process, there might not be any removals in the future!
How will they “reopen” this mess even when the “Trump shutdown” ends? Why won’t most of the overworked, underpaid, under appreciated, stressed out Court Clerks who keep this (unautomated, paper heavy) “Rube Goldberg Contraption” afloat, and who live paycheck to paycheck, have found new jobs where they are fairly paid and appreciated? Why won’t all the retirement-eligible judges head for the exits where life is better, the paychecks keep coming, and you can actively fight the Trump idiocy?
FALSE EQUIVALENCY: No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
I’m tired of hearing all the “fake news” about “shared responsibility” for the “Trump shutdown:” The totally insane and unnecessary shutdown that he promised to inflict and that Mitch McConnell and the GOP enablers delivered against the American people.
The shutdown is 100% a GOP responsibility, just as Trump originally threatened. The wall is at best an ineffective and overpriced method of addressing border security, particularly standing alone. And, it has absolutely nothing to do with current border security because it would take years, if not decades, to build. There is no way that it justifies shutting down the Government.
Trump’s latest offer clearly was made in bad faith. While he and Pence disingenuously presented a distortedly simple version to the public, the actual 1,000-page screed was filled with White Nationalist attacks on asylum, kids, and migrants drafted by neo-Nazi Stephen Miller as a “sharp stick in the eye” to Dems, Hispanics, refugees, and all Americans who believe in our Constitution and humane values. In other words, typical Trump/Miller/McConnell nonsense. Trump is actually offering “Dreamers” less than the Supremes have effectively guaranteed them. So, how is that a reasonable proposal or a good faith “starting point” for negotiations?
The GOP can and should join Dems in reopening Government now, no strings attached and with a much-needed pay raise for Feds, by a “veto-proof” margin. Forget Trump, his anti-American rants and schemes, and his diminishing White Nationalist “fan club.”
Then, the “Non-Bakuninist Branch” of the GOP needs to join the Dems in governing America, which Trump has proved beyond a reasonable doubt he has neither the ability nor the desire to do. Immigration should be part of that discussion; but, not the White Nationalist agenda on immigration that Trump and Miller keep pushing.
We need a realistic discussion that would strengthen protections for asylum seekers, use more smart technology, improved intelligence, Immigration Inspectors, Anti-Smuggling Officers, undercover agents, Asylum Officers, and Immigration Judges to deal with the border situation, and significantly expand legal immigration. The latter is a long overdue common-sense move to serve our country’s future needs (most reliable studies show that we need more, not less immigration), diminish the size and allure of the “extra-legal” system that arises when the law is out of whack with market realities (as ours is now), and allow DHS enforcement to focus on the “real bad guys” rather than artificially combining “bad guys” with folks coming to help us out (and help themselves and their families in the process).
Reform of the U.S. Immigration Courts which Trump and Sessions have utterly and cynically destroyed should also be on the agenda. There is only one answer: get those courts out of the politicized and incompetent U.S. Department of Justice and into an independent judicial structure where apolitical judges and professional court administrators can start fixing the absolutely disgraceful and dysfunctional mess that Sessions and his predecessors have made out of what could have been an effective and efficient provider of Due Process. Too late now! Just stop the hemorrhaging and start building something of which America can actually be proud rather than the current national embarrassment, which serves neither the individuals whose rights it was intended to protect nor legitimate DHS enforcement objectives. That’s the very definition of failure.
The Post and other mainstream media keep pushing a “false equivalency” in blaming “both sides” for the shutdown. That’s not true; the shutdown was engineered solely by Trump and the GOP BEFORE the Dems even took over the House, just as Trump had publicly and petulantly threatened.
While the Dems should look for ways to be part of the solution, the problem is Trump, the GOP, and those enablers who continue to support a fundamentally anti-American agenda that attacks our own governing institutions and the dedicated public servants who keep them running for all of us.
Every day must be a great day for Vladimir Putin with Trump and the GOP destroying America! It’s time for Dems and whatever responsible GOP legislators might remain to take the reins and save America from Trump and his Putin-serving policies before it’s too late! “Time’s a wasting” while Trump and the GOP are fiddling with our country’s security and future well-being. Unacceptable!
SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
On Tuesday, a divided Supreme Court allowed a portion of Trump’s homophobic ban on certain transgender troops to go into effect. At the same time, they properly squelched the arrogantly disingenuous attempt by Trump and his “go along to get along” Solicitor General Noel Francisco to “expedite” review of lower court rulings that found that Trump, former Attorney General Sessions, and DHS acted lawlessly and without any apparent legal rationale in terminating the “DACA” program. In simple terms, decisions that required the Administration to follow the law.
Prior Solicitors General have sometimes balked at representing liars and presenting disingenuous arguments in behalf of their Government “clients.” (Actually, somewhat of a bureaucratic misnomer, because the “institutional client” is really the “People of the U.S.” who pay Government salaries, regardless of whether they are citizens or can vote.) Not this one, who seems to savor the opportunity to carry Trump’s more than ample “dirty water” and reduce the credibility of his one-respected office to around zero. As I predicted, nobody serves Trump without being tarnished.
For the LGBTQ community, it’s a horrible signal that a narrow majority of the Supremes are unwilling to move into the 21stcentury and recognize their Constitutional rights to equal protection under the 14thAmendment as well as their rights as human beings. It’s also shockingly disrespectful to those who have stepped forward to risk their lives in the name of our country, something Trump took great pains to avoid. It’s doubly disappointing that Chief Justice John Roberts joined his far-right colleagues on this one, at least in part (he rejected the bogus argument for immediate review put forth by Francesco and instead sent the case back to the lower courts for further development).
Unlike some of his colleagues on the right, Roberts has some sense of institutional history, the horror and existential dangers to democracy of Trump as Chief Executive, and the future. Come on, “Chiefie,” we can all get smarter as we get older! Don’t blow your chance to “get on the right side of history.” Leave the “Four Horsemen of the Apocalypse” behind in their dust and join your four more enlightened colleagues in moving America forward and showing some leadership and courage on the Supremes. As this month has shown, you might be the only person able to save America.
Paraphrasing what many pundits have said, “The Supremes can basically do anything they want, whenever they want to, for any reason they can come up with, because they are Supreme.” With that caveat in mind, the Court’s well-deserved slap down of Trump on DACA basically leaves the full protections in effect for Dreamers until the end of the Trump Administration. At that point, we’ll either get a new President, or there won’t be any country left for the “Dreamers,” the Supremes, or the rest of us to “dream about” or live in. The so-called “American Dream” will be at a tragic end. We’ll all be living in a continuing nightmare of cruelty, incompetence, and randomness.
I think the Supremes would be wise not to take up the DACA issue ever. It needs to be resolved by the lower courts, who have for the most part done a fine job, and the Congress, which hasn’t. But, assuming the Supremes do take the issue, they probably wouldn’t schedule argument before the October Term 2020. That makes it highly unlikely that they would reach and issue any final decision before the November 2020 elections. There would certainly be no reason for them to “rush to judgement” on this one.
Thus, Trump’s hollow offer of meager “Dreamer relief,” no path to green cards or citizenship and less than they have now under the court decisions, is even less of a legitimate “bargaining chip” than it was before. And, “poisoning the well” with Stephen Miller’s White Nationalist anti-asylum, child-abuse agenda shows how intellectually dishonest Trump and the GOP are and that the rancid “thousand pages of vile gibberish” that they launched as a “fake offer to reopen our Government” is a pure political stunt and an insult to 800,000 unpaid Government workers.
Moreover, all of this nonsense must be viewed in context of reality. That’s something that seldom intrudes on the daily intentionally created chaos and national dysfunction of this Administration. The Dreamers aren’t going anywhere! Almost all of them have legitimate applications for immigration relief that they can file in Immigration Court, including cancellation of removal, asylum, withholding of removal, or relief under the CAT.
Trump, Sessions, and now Whitaker have totally destroyed the U.S. Immigration Court system. I’m not sure it will be able to reopen even when the Trump shutdown finally ends. With a politically-created backlog of well over one million cases, growing by tens of thousands with every day of the mindless Trump shutdown, virtually no “Dreamer” (other than a minute percentage who might be convicted of crimes and probably would have had their DACA status revoked or denied on that basis) would be scheduled for removal proceedings within the next four years, let alone by 2020. Indeed, if Congress doesn’t step in and provide Dreamer relief and an Article I independent Immigration Court to replace the current dysfunctional mess in the DOJ, some of these cases may well still be pending a decade from now!
This context also reaffirms the total disingenuous absurdity of SG Francisco’s argument that this is an “emergency” requiring “early intervention” by the Supremes. Nothing could be further from the truth. The only “emergency” is the one intentionally caused by his “client” Trump — by illegally and unnecessarily trying to shut down the DACA program and aggravated by his Administration’s wanton destruction of our U.S. Immigration Courts, and by the “Trump shutdown.”
The Supremes must take a “hard line” against being “sucked in” to the many bogus “emergencies” that Trump creates to detract attention from his and his party’s inability to govern in even a minimally fair and effective manner. Perhaps, it’s also time for Francisco to reread the rule of ethics for lawyers and have a “heart to heart” with his “client” about abusing the Federal Courts with semi-frivolous litigation and presenting lies as “facts.” It’s never too late to learn!
President Trump and his allies have spent days talking up the idea that his new proposal to reopen the government constitutes a “compromise.” Senate Majority Leader Mitch McConnell (R-Ky.) has vowed to bring the proposal to a vote this week, arguing that it’s a “compromise” that includes “priorities” that “both sides” want. Vice President Pence insisted that it’s a “compromise” that has been offered in “good faith.”
But on Monday night, Senate Republicans released the bill text of this supposed “compromise.” Surprise: It has been so loaded up with poison pills that it looks as if it was deliberately constructed to make it impossible for Democrats to support.
If so, that would be perfectly in keeping with the M.O. that we’ve already seen from top adviser Stephen Miller, who appears devoted to scuttling any and all policies that could actually prompt compromises but which don’t endeavor to reduce the total number of immigrants in the United States to as low a figure as possible.
Trump’s proposal, as presented in his speech the other day, would reopen the government, provided that Democrats agree to $5.7 billion in spending on his border wall. It would also include hundreds of thousands of dollars in humanitarian provisions, which is good (though the administration itself wants those funds).
What concessions would Democrats get? As Trump noted, the proposal would include legislative relief for 700,000 young immigrants brought here illegally as children — a.k.a. “dreamers” — and for people whose temporary protected status is set to expire. Trump also said Central American migrant children would get a “new system” to “apply for asylum in their home countries.”
Trump argued that the plan is “straightforward, fair, reasonable and common sense, with lots of compromise.”
This is utter nonsense on just about every level. And the bill itself now proves it.
The proposal on the dreamers was whittled down to the point where it only undoes the disaster Trump himself is orchestrating. The New York Times recently reported that Miller privately “intervened” to ensure that the bill dramatically downsizes the number of dreamers who would get protections. He cut that number from 1.8 million to 700,000 (the number Trump referenced).
The bill text confirms this and illustrates how it was done. It grants three years of protected lawful status plus work authorization only to those who are currently on the Deferred Action for Childhood Arrivals program, not to all of those who are eligible for it, a much larger pool. It cannot be renewed.
This is a badly truncated version of the Bridge Act, a measure championed by Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) that would have granted this status to the larger pool of those who are DACA-eligible. Thus, Trump’s proposal would only restore temporary protections that were already granted and that Trump has tried to take away (his effort to cancel DACA is tied up in court). The press release accompanying the new bill misleadingly calls the new measure “the Bridge Act,” inadvertently preserving the taint of bad faith pervading this particular provision.
The new proposal is much worse on asylum seekers than advertised. The bill text explains what Trump really meant when he claimed his proposal would create a “new” way for Central American migrant children to apply for asylum. The proposal actually declares that the only way any of them will be eligible for asylum going forward is if they apply for it outside the United States at soon-to-be-created application centers in Central America, according to several legal experts I spoke with about this.
Those experts point out that this would in effect close off the main avenue for these minors to apply — that is, the right to apply when they enter the United States and are apprehended. To be clear, creating an out-of-country way to apply is not itself a bad thing, and the proposal appears ostensibly to be in keeping with an aim that appears understandable on its face — the desire to discourage the journey.
But that belies the deeper significance of this change. According to Philip Wolgin, the managing director for immigration policy at the Center for American Progress, by foreclosing the option of applying in the United States, it would gut the basic values at the core of our asylum program — values in keeping with international human rights norms holding that if people who had good reason to flee horrible civil conditions at home present themselves at borders and appeal for refuge, they have the right to have their claims heard.
Plus, the program actually caps the total who can be annually granted asylum at 15,000. In the last fiscal year, some 50,000 unaccompanied minor migrants were apprehended, and while we can’t be sure how many would ultimately qualify for asylum, the cap itself creates an arbitrary maximum unrelated to the strength of their actual claims, Wolgin notes. And as immigration policy analyst Aaron Reichlin-Melnick points out, once the Department of Homeland Security nixes asylum, under the new proposal it would not be subject to judicial review.
“They’re trying to radically reshape asylum law,” Wolgin told me.
This is nothing remotely like a compromise offer
There is no way this offer represents a compromise, if we conventionally understand a “compromise” to be an agreement in which both sides secure meaningful concessions. Actual concessions by Trump on the dreamers might entail extending these protections well beyond what he’s currently trying to cancel, such as applying them to far more people or, better, granting a path to citizenship for dreamers or otherwise making their protections permanent.
What’s more, given how radical these proposed changes to asylum law are, it’s precisely the opposite of the spirit of compromise that Trump and McConnell are trying to jam them through under duress — with the gun of a government shutdown pointed at the country, to jam Democratic lawmakers — rather than through a legitimate, good-faith congressional process that would include hearings, fact-finding and deliberation.
Which gets to the biggest sham of all at the core of this whole affair. If the offer by Trump and McConnell really represented something that actually did involve meaningful concessions to both sides, and thus actually could provide the basis for real compromise discussions, then why would they need to keep the government closed while those talks unfolded?
The answer is simple: They know their only hope of getting the concessions they’re demanding from Democrats is to keep the gun pointed at the hostage.
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Refugees would die under this bogus “proposal” which bears all the marks of having been drafted by racist, xenophobe, neo-Nazi, “Putinite” Trump advisor and former Sessions acolyte Stephen Miller. It’s obviously a non-starter with the Dems and a totally outrageous “kick in the teeth” to dedicated out of work U.S. Government employees. It’s also an insult to all Americans who were not told the totally outrageous details of this “bogus non-proposal” when Trump and Pence dishonestly presented it as a “good faith compromise.”
Vladimir must be having one of the best days of his life! Destroying America and adopting “Soviet values.” And, it isn’t costing Vladimir anything. But, Trump and his GOP stooges are costing us — Big Time!
As my friend Paul Schmidt announced on his excellent blog immigrationcourtside.com, immigration judges in San Francisco and Arlington, VA recently issued written decisions granting asylum to victims of domestic violence. Notably, the decisions concluded that “Mexican females” and “women in Honduras” constituted cognizable particular social groups under applicable case law, including the former Attorney General’s decision in Matter of A-B-.
Asylum advocates have sought for many years to have the Board of Immigration Appeals recognize a particular social group defined by gender alone. However, the BIA has declined to consider the issue.1 The need for such guidance from the Board has increased significantly since the issuance of Matter of A-B- last June. Even under the holdings of that decision, gender continues to meet all of the criteria for a cognizable particular social group, as gender is an immutable characteristic fundamental to one’s identity, is sufficiently particular to provide a clear benchmark for inclusion, is socially distinct in all societies, and is not defined by the harm which gives rise to the applicant’s fear of persecution.
In the seven months since Matter of A-B- was issued, the BIA has yet to respond with a precedent decision affirming the continued viability of domestic violence-based asylum claims. Nor has the BIA affirmed that gender alone may constitute a cognizable particular social group for the above reasons, in spite of the fact that its members have had years to consider the issue, and could rely on so many outstanding legal sources on the topic. The BIA showed an ability to respond quickly in issuing a precedent decision in only two months time following the Supreme Court’s decision in Pereira v. Sessions. So the present silence should be interpreted as a specific choice by the BIA to remain silent, likely motivated by its fear of upsetting its higher-ups in the present administration.
In the absence of guidance from the BIA, and while waiting for appeals to work their way through the circuit courts (I am aware of appeals relating to this issue currently pending in the First and Fourth Circuits), the two recent immigration judge decisions are encouraging. In the San Francisco case, Judge Miriam Hayward (who has since retired from the bench) found “Mexican females” to constitute a cognizable particular social group. In Arlington, Assistant Chief Immigration Judge Deepali Nadkarni made the same finding for the group consisting of “women in Honduras.” Redacted copies of their written decisions may be read here: http://immigrationcourtside.com/wp-content/uploads/2019/01/SF-IJ-Hayward-DV-PSG-grant.pdf; http://immigrationcourtside.com/wp-content/uploads/2019/01/Nadkarni-Grant-Women-in-Honduras-PSG.pdf
In addition to their particular social group analysis, both decisions conclude that at least one central reason for the persecution suffered was the asylum applicant’s membership in the gender-defined group. For example, in the San Francisco case, Judge Hayward found such nexus was established by a combination of specific statements made by the male persecutor (i.e. “a woman’s only job was to shut up and obey her husband,” and “I’m the man and you’re going to do what I say”); a report of an expert on domestic violence citing gender as a motivating factor for domestic violence; and a statement in a multi-agency report that violence against women in Mexico “is perpetrated, in most cases, to conserve and reproduce the submission and subordination of them derived from relationships of power.”
In her decision, Judge Nadkarni held that the size of the group defined by gender does not prevent it from being defined with particularity, and noted that the BIA “has routinely recognized large groups as defined with particularity.” It also bears mentioning that the ICE prosecutor in Judge Nadkarni’s case “conceded that the Honduran police was unable or unwilling to protect the respondent…” Without such concession in her case, Judge Hayward found that country reports and Mexican law itself were sufficient to establish that the government was unable or unwilling to protect the respondent even under the heightened standard expressed by the former AG in Matter of A-B-.
As I stated in an earlier article, immigration judges have received no guidance or training from EOIR in analyzing domestic violence claims in the aftermath of Matter of A-B-. As a result, some immigration judges remain uncertain as to whether the law allows them to grant such claims at present. It is hoped that these decisions will serve as a useful template for judges. It seems particularly instructive that one such decision was issued by Judge Nadkarni, a management-level judge who supervises all immigration judges sitting in the Arlington, Batavia, Buffalo, and Charlotte Immigration Courts, as well as the Headquarters court which hears cases remotely by televideo. Judge Nadkarni is the direct boss of V. Stuart Couch, the Charlotte-based immigration judge whose refusal to grant asylum as directed by the BIA in Matter of A-B- led to the former Attorney General’s certifying that case to himself.
Congratulations to attorneys Kelly Engel Wells of Delores Street Community Services and Mark Stevens of Murray Osorio PLLC for successfully representing the asylum applicants.
In light of these decisions, and in the absence of guidance from EOIR, our group of former immigration judges and BIA members would be happy to provide sitting judges with outside training and resources on this topic. Interested judges may contact me, and perhaps we can set up group training sessions for furloughed judged during the present shutdown.
Notes:
See, e.g. Matter of A-R-C-G-, 26 I&N Dec. 388, 395, n. 16, acknowledging the argument of amici “that gender alone should be enough to constitute a particular social group in this matter,” but declining to reach the issue.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
EOIR would do much better if it were to lose the venomous “(junior) partner of DHS Enforcement, no sympathy, compassion, or kindness for the most vulnerable among us, and scofflaw” persona that it acquired under White Nationalist AG Jeff “Gonzo Apocalypto” Sessions and act more like a real court of law (or at least a fair and impartial quasi-judicial tribunal) again.
While there is zero chance of it happening, soon to be AG Bill Barr (who grotesquely has painted himself as a great admirer of his biased and incompetent predecessor) would do himself and our country a great and lasting service if he hired a retired Federal Judge with a strong record in (positive) humanitarian law, individual due process, and court administration (e.g., a “reincarnation” of the late Judge Patricia Wald) to run and rebuild EOIR with a Due Process, independent adjudication, and judicial efficiency focus, and kept the politicos out of the process, no matter how much they might complain or not like fair results on the “deportation railway.” But, not going to happen till we get “regime change.”
Viewing “law enforcement” as a solemn responsibility to insure that individuals’ rights are protected, individuals are treated fairly regardless of status, creed, gender, or race, and that life-saving protection is generously granted whenever legally possible is as much a part of the Attorney General’s Constitutional responsibility as booting folks out of the country. It’s sad, disturbing, and very damaging to our country, that so few Attorneys General have taken this responsibility seriously, particularly in recent years.
I understand the Dems reluctance to enable Trump’s “hostage taking” strategy. But, I doubt they can solve that with Trump and the GOP controlling two of the three political arms of Government.
Indeed, a better idea would be for Speaker Pelosi and Majority Leader McConnell to get together “when the smoke clears” and see what they can do jointly to take back and fix the bipartisan Congressional budget process and protect it from overreach by Executives of both parties. For two of the major legislative “gurus” of our age in the twilight of their careers, that would be a great “bipartisan legacy.”
But, for the time being, folks are suffering, and lives are in danger: Government employees, those that depend on Government, asylum applicants, Dreamers, TPSers, those in Immigration Court, and the families of all of the foregoing. So, I think the Dems should make a “robust” counterproposal that gives Trump at least part of his “Wall,” but also includes other important reforms and improvements that will diminish the impact of border migration issues in the future. Most important, almost everything in this proposal would save or improve some human lives and benefit America in the short and long run.
So, here’s my outline of the “SECURITY, MIGRATION ASSISTANCE RENEWAL, & TECHNICAL SYSTEMS ACT (“SMARTS ACT”) OF 2019”
SECURITY, MIGRATION ASSISTANCE RENEWAL, & TECHNICAL SYSTEMS ACT (“SMARTS ACT”) OF 2019
Federal Employees
Restart the Government
Retroactive pay raise
Enhanced Border Security
Fund half of “Trump’s Wall”
Triple the number of USCIS Asylum Officers
Double the number of U.S. Immigration Judges and Court Staff
Additional Port of Entry (“POE”) Inspectors
Improvements in POE infrastructure, technology, and technology between POEs
Additional Intelligence, Anti-Smuggling, and Undercover Agents for DHS
Anything else in the Senate Bill that both parties agree upon
Humanitarian Assistance
Road to citizenship for a Dreamers & TPSers
Prohibit family separation
Funding for alternatives to detention
Grants to NGOs for assisting arriving asylum applicants with temporary housing and resettlement issues
Require re-establishment of U.S. Refugee Program in the Northern Triangle
Asylum Process
Require Asylum Offices to consider in the first instance all asylum applications including those generated by the “credible fear” process as well as all so-called “defensive applications”
Immigration Court Improvements
Grants and requirements that DHS & EOIR work with NGOs and the private bar with a goal of achieving 100% representation of asylum applicants
Money to expand and encourage the training and certification of more non-attorneys as “accredited representatives” to represent asylum seekers pro bono before the Asylum Offices and the Immigration Courts on behalf of approved NGOs
Vacate Matter of A-B-and reinstate Matter of A-R-C-G-as the rule for domestic violence asylum applications
Vacate Matter of Castro-Tumand reinstate Matter of Avetisyan to allow Immigration Judges to control dockets by administratively closing certain “low priority” cases
Eliminate Attorney General’s authority to interfere in Immigration Court proceedings through “certification”
Re-establish weighing of interests of both parties consistent with Due Process as the standard for Immigration Court continuances
Bar AG & EOIR Director from promulgating substantive or procedural rules for Immigration Courts — grant authority to BIA to promulgate procedural rules for Immigration Courts
Authorize Immigration Courts to consider all Constitutional issues in proceedings
Authorize DHS to appeal rulings of the BIA to Circuit Courts of Appeal
Require EOIR to implement the statutory contempt authority of Immigration Judges, applicable equally to all parties before the courts, within 180 days
Bar “performance quotas” and “performance work plans” for Immigration Judges and BIA Members
Authorize the Immigration Court to set bonds in all cases coming within their jurisdiction
Fund and require EOIR to implement a nationwide electronic filing system within one year
Eliminate the annual 4,000 numerical cap on grants of “cancellation of removal” based on “exceptional and extremely unusual hardship”
Require the Asylum Office to adjudicate cancellation of removal applications with renewal in Immigration Court for those denied
Require EOIR to establish a credible, transparent judicial discipline and continued tenure system within one year that must include: opportunity for participation by the complainant (whether Government or private) and the Immigration Judge; representation permitted for both parties; peer input; public input; DHS input; referral to an impartial decision maker for final decision; a transparent and consistent system of sanctions incorporating principles of rehabilitation and progressive discipline; appeal rights to the MSPB
International Cooperation
Fund and require efforts to work with the UNHCR, Mexico, and other countries in the Hemisphere to improve asylum systems and encourage asylum seekers to exercise options besides the U.S.
Fund efforts to improve conditions and the rule of law in the Northern Triangle
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No, it wouldn’t solve all problems overnight. But, everything beyond “Trump’s Wall” would make a substantial improvement over our current situation that would benefit enforcement, border security, human rights, Due Process, humanitarian assistance, and America. Not a bad “deal” in my view!
The greatest contrast between the time King led the struggle for America’s legal and social transformation and now is a White House occupied by Donald Trump.
The federal government, once a powerful legal and moral force to make real the promise of democracy, is in the hands of adversaries who seek to restore a hierarchy in which the interests of the bigoted, the xenophobic, the sexist and the defender of white male privilege always come out on top.
There is a long list of ways in which backtracking on civil and human rights has occurred since the election of a president who lost the popular vote by nearly 3 million votes. It ranges from discriminatory travel bans against Muslims to turning a federal blind eye to intentionally racially discriminatory state voter-suppression schemes, to opposing protections for transgender people, to inhumanely separating children from families seeking to enter the country.
Sadly, that’s not all that stands out.
Once the federal locus of the nation’s quest for racial reconciliation, today’s White House is a source of racial divisiveness and a beacon to the prejudice-warped fringes of American society. It’s no surprise that the FBI found hate crimes in America rose 17 percent in 2017, the third consecutive year that such crimes increased. In King’s day, racially loaded, hateful rhetoric could be heard across the length and breadth of the Deep South. Now, mean, disgusting and inflammatory words come out of the mouth of the president of the United States.
How far have we traveled?
From the promise of guaranteed rights to a return to the insecurity of injustice. A pluralistic America is being cynically drawn along racial lines by a president who is as far from the civility of his predecessors Truman, Eisenhower, Kennedy, Johnson, Ford, Carter, Reagan, the Bushes, Clinton and Obama as the charter of the Confederacy was from the Constitution.
King, and the movement he led, would be outraged. The rest of us should be, too.
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Read the full op-ed at the above link.
Very powerful! King speaks truth, reason, and humanity — in the spirit of Dr. King. Contrast that with the vile slurs, bogus race-baiting narratives, and non-policies spewing from the mouth of our racist (and incompetent) Liar/Grifter-in-Chief!
Two of my favorite MLK quotes (from the Letter from the Birmingham Jail — with acknowledgment to the Legal Aid and Justice Center from their poster hanging in my “office”)):
Injustice anywhere is a threat to justice everywhere.
Whatever affects one directly, affects all indirectly.
Thanks to those many courageous and dedicated individuals tirelessly serving America in the New Due Process Army by resisting Trump’s illegal and anti-American policies! You, indeed, are the 21st Century continuation of Dr. King’s legacy to our country and the world! Dr. King would be proud of you! Due Process Forever!
The largest single group of asylum seekers ever to cross into the U.S. tunneled beneath the border wall near San Luis, Arizona, on Monday, voluntarily turning themselves into Customs and Border Protection, according to the agency.
Migrants can be seen marching toward Border Patrol agents by the hundreds, according to video obtained by ABC News. Smugglers dug a series of seven holes, only a few feet long beneath the steel border fence, with hundreds going beneath the wall and a smaller number clambering over it, according to CBP.
The fresh sand and scuff marks of shoes on the rusty steel were still there when ABC News visited the site on Thursday.
The agency says 179 of the record 376 people who crossed were children, including over 30 unaccompanied minors — children under 18 traveling on their own.
The overall number of unauthorized crossings has plummeted since its peak in the 2001, when CBP logged about 1.6 million apprehensions, according to government statistics. However, the demography of those crossing has changed dramatically.
Parents with children now comprise over 80 percent of the total apprehensions of those crossing the 2,000-mile long border with Mexico. The vast majority of them, like the group near Yuma Monday, surrender immediately or seek out Border Patrol agents in order to begin the asylum process.
CBP Yuma Border Sector Chief Anthony Porvaznik said his unit needs better border barriers, but more urgently it needs funding to provide for these families.
“That’s our No. 1 challenge that we have here in the Yuma sector, is the humanitarian problem,” Porvaznik said. “As I mentioned, 87 percent of the apprehensions here are family units and unaccompanied alien children.”
The mass crossing this week took place in a sparsely populated stretch of the border — where an old model of border barrier rises about 12 feet from the sandy ground. The stretched agency only had three agents patrolling that 26-mile-long section of the border.
It took hours to process the families, most of which were sent to the area’s chronically overcrowded central processing center in Yuma.
“In my 30 years with the Border Patrol, I have not been part of arresting a group of 376 people,” Porvaznik said. “That’s really unheard of.”
On Thursday, hundreds of asylum seekers were being held in cinderblock cells with thick glass windows that overlooked a central bullpen where CBP agents worked to process them and provide humanitarian needs. The asylum seekers were separated into cells: fathers with sons, fathers with daughters, unaccompanied minors and mothers with children.
As in all such facilities, the CBP said it works to process them as quickly as possible, and provides basic medical care. Still, detainees eat, sleep and use the bathroom in the same room. Scraps of food mingled with silvery space blankets on the floor. In one cell, several boys had balled up the blankets into a makeshift soccer ball they were kicking around.
One man in the group said he left Guatemala eight days ago and made most of the trip by bus along with his 12-year-old daughter. They were planning to leave the processing center destined for San Diego — plane ticket in hand.
The father said he saved about $5,000 to pay a coyote to quickly get them to the border. He left a wife and two younger daughters back in Guatemala. Next to them were a mother and two daughters on their way to Cincinnati, also from Guatemala. They too traveled by bus and the journey took about eight days.
Just two days after the group tunneled under the border wall in Yuma, the Border Patrol took in another huge group of migrants in New Mexico. The 247-person group, including unaccompanied minors, crossed near the Antelope Wells Port of Entry and immediately surrendered to authorities for processing.
The CBP said 24 large groups — quantified as 100 or more — have crossed the border near Lordsburg, New Mexico, just since Oct. 1, 2018.
ABC News’ Ignacio Torres and Mark Osborne contributed to this report.
Editor’s note: This story has been updated to say Customs and Border Protection.
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Even the Border Patrol admits that the first priority should be humanitarian aid, something totally lost on the Trump Administration. Trump sometimes “mouths” the words “humanitarian crisis” — obviously written for him by someone else — but he doesn’t have the faintest idea of what it means or how to address it.
Despite controversies over border walls, separated families and the Muslim travel ban, immigrants are still striving for American citizenship. WE ARE WITNESSES: BECOMING AN AMERICAN tells their stories and the stories of those trying to help and hinder them.
I’m proud to have been a part of this project. Many thanks to Isabel Castro, Ruth Baldwin, and all of the other great folks over at The Marshall Project for making this happen!
Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings. This guidance takes immediate effect and should be relied upon and cited to by advocates.
The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:
1. The general rule against claims relating to domestic and gang violence.
2. The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”
3. The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.
4. The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.
5. The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.”
6. The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”
While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts. Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law. The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.
Best,
Karen
Karen Musalo
Bank of America Foundation Chair in International Law
Professor & Director, Center for Gender & Refugee Studies
Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.
The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.
Most, if not all, cases denied on the basis of Sessions’s flawed decision in MatterofA–B– should be subject to remand from the Article IIIs. Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.
